Vaughn Palmer: Government’s appeal of court ruling makes fiscal sense

Here’s why: It buys the Liberals time and a chance at a less expensive verdict

Education Minister Peter Fassbender disagrees with the judge’s interpretation that the government was not negotiating in good faith.

Photograph by: JONATHAN HAYWARD
, THE CANADIAN PRESS

VICTORIA — Education Minister Peter Fassbender insisted “it’s not about the money” in announcing Tuesday that the provincial government is heading back to court in the long-running legal battle with the B.C. Teachers’ Federation.

But as is commonly the case when someone says it’s not about the money, it IS about the money.

The B.C. Liberals were in a state of high fiscal anxiety over the budget-busting implications of last week’s big courtroom win by the B.C. Teachers’ Federation, as Fassbender himself conceded.

“In practical terms the judgment is completely unaffordable for taxpayers,” he told reporters. “It would create huge disruptions in our schools and, most importantly, it will prevent districts from providing the right mix of supports that our students actually need.”

Pressed on a preliminary estimate for the cost of meeting the court-imposed obligation to restore staffing levels and class sizes to 2002 levels, he reckoned it at “upwards of a billion dollars.”

That’s probably on the high side.

But the BCTF says the system has been shortchanged by 3,500 teachers since the Liberals stripped union contract provisions a dozen years ago. Restoring that many positions could cost upwards of $250 million a year, based on the mid-range of wages and benefits for teachers.

The union also says the overall education system is underfunded to the tune of $1,000 per pupil, which translates to more than half-a-billion dollars on current enrolment.

Not to say that the government would be obliged to close the gap in a single year. In ruling against the Liberals last week, B.C. Supreme Court Justice Susan Griffin expressed an expectation that the two sides would negotiate a settlement.

That prospect raises another matter high on the government’s list of objections to the Griffin judgment: namely, the damning implication that the Liberals cannot be trusted at the bargaining table.

The judge found the Liberals guilty of bargaining in bad faith in the last round of negotiations with the BCTF. Drawing on her reading of government documents that have yet to be made public, she accused provincial negotiators of pretending to negotiate while seeking to provoke a strike, create a backlash against the BCTF and build public support for a tough legislated settlement.

Fassbender challenged the judge on that point. “I can tell you that this government’s policy is not to provoke disruption, not to provoke strikes,” he claimed. “The judge has her interpretation … we disagree with that, and make no hesitation in saying clearly on behalf of this government we disagree with that interpretation.”

That disagreement will likely form the crux of the appeal. For in finding the Liberals trampled the union’s constitutional right to fair treatment at the bargaining table, the judge tossed the government’s legislative remedy into the dumpster.

“The judge’s interpretation was that we were not negotiating in good faith, and we were,” protested Fassbender. “We did a number of things that we truly believe as government met the spirit of the previous judgment.”

He indicated that the government also intends to challenge the judge’s reading of Supreme Court of Canada decisions on what constitutes due process at the bargaining table. “I’m not a lawyer,” he added, indicating that reporters should expect a fuller explanation at some point from the ministry of the attorney-general.

Based on hints from Fassbender and others, I expect the appeal will be laid out along the following lines.

The Liberals will challenge Justice Griffin’s reading of those cabinet documents, claiming they did not represent a hard-and-fast plan to provoke a strike but rather a discussion of scenarios and options.

The goal will be to persuade the higher court that the government was in fact bargaining in good faith when it went to the table with the BCTF in the fall of 2011.

The Liberals will then argue that talks with the BCTF, far from being a sham, were simply unsuccessful. With a looming deadline imposed by Griffin herself, the government had to implement a legislative solution and did so in the spring of 2012.

If that argument succeeds, the Liberals will then try to persuade the appeal court that the particular bill they brought in was a reasonable response to an earlier ruling (also by Justice Griffin) that obliged them to rectify their stripping of the BCTF contract.

Thus the Liberals hope the Court of Appeal will find the 2012 legislation to be constitutional, and let them off the hook for having to roll back staffing levels and class sizes a dozen years.

If that seems rather “iffy,” you’ll get no argument from this quarter. As many a plaintiff has discovered, going to court can be akin to rolling the dice in one of the most expensive casinos in the land.

Allowing a year or so for a decision from the Court of Appeal, plus the likelihood that the losing side would seek leave to proceed to the Supreme Court of Canada, the final verdict might not be forthcoming for a couple of years.

In the interim, the uncertainties for the K-12 system would continue. One can readily imagine the chill at the bargaining table in the current round of talks on a new contract for the education sector.

But by risking a few more millions in court costs, the Liberals will have bought themselves some time and a chance at a less expensive verdict than the one staring them in the face today.

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